Articles Posted in Medical Malpractice

Why Confidential Settlements are a “Necessary Evil.”

by Gary Brooks Mims a settlement agreement confidential is often a prerequisite for the defendant to agree to a settlement.  We have settled many cases for millions of dollars, yet the defendant (or its insurer) will insist upon confidentiality and a release that denies liability.  Really…you’re paying millions of dollars but deny you were negligent?  Obviously, the defendant knows it is liable, but for several reasons, it does not want others to know.  For example, a hospital that settles a wrongful death case may not want other potential plaintiffs to know what the hospital is willing to pay under similar circumstances.

firm-19176-US-Basic-Medium-E27Partners Steve Frei and Gary Mims have once again been recognized and named to the peer-reviewed, 28th edition of Best Lawyers in America. Matt Perushek is once again recognized on the  Best Lawyers’ “Ones to Watch” list, which premiered in 2021.

Both Frei and Mims have received the Best Lawyers distinction, continuously, since 2007. They are recognized in Personal Injury Litigation and Medical Malpractice Law for plaintiffs.

The Ones to Watch roster recognizes attorneys for outstanding professional excellence in private practice, who are earlier in their careers and typically in practice for five to nine years.

Ending more than two years of motions and appeals, the Virginia Supreme Court has denied writ for defendant appeals in the firm’s medical malpractice default judgment case.

In December 2018, partner Gary Brooks Mims won a default judgment of $468,000, when Emergency Medical Associates (EMA) failed to respond to the medical malpractice lawsuit. The complaint alleged negligence in the treatment of a woman who had broken her shoulder.

EMA claimed it never received service of the complaint and launched a legal barrage of motions and appeals, delaying resolution of the case and compensation to the victim.  Arlington County Circuit Court denied EMA’s motion to set aside the verdict and grant a new trial, which EMA then appealed to the Virginia Supreme Court.

COVID-19 UPDATE: As of Wednesday, June 3, our office is open, staffed, and operational. Phones will be answered. You may also contact us through the Contact page on the website or by email at email or email attorneys directly (addresses found on the attorney profile pages.)

COVID-19 Notice: Our law firm is open and we are working. Due to the pandemic, our lawyers and staff are generally working remotely. Everyone has access to firm email and voice mail. When calling the office, use the firm directory to leave a voice mail message for attorneys or staff. Email addresses are found on the attorney profile pages. 

Courthouses are usually packed with people — potential jurors, judges, clerks, attorneys, plaintiffs, defendants, witnesses, sheriffs, bailiffs, court reporters, and many more people who help keep the judicial system operating. In March 2020, the global pandemic forced nearly all judicial processes to come to a halt.

Frei, Mims and Perushek has been named “Most Trusted Personal Injury Law Firm – Virginia” by US Business Magazine, in their 2020 Legal Elite Awards program.

Winners for the awards are the result of months of research and analysis by US Business and are chosen on the basis of merit, according to the magazine, which is described as “the definitive magazine for CEOs, top tier management and key decision-makers across the U.S.

“We are proud to have earned the trust of Virginians for medical malpractice and personal injury representation and we are committed to maintaining that trust and achieving justice for our clients,” said Gary Brooks Mims, managing partner.

Medicine is a science, yes, but it is also an “art” involving interpretation and analysis. In treating a patient, a physician has to make decisions; decision-making involves weighing available evidence, making a judgment, and choosing a course of action. The challenge for you, if you are a victim pursuing a medical malpractice case, is that your attorney will need to show that your treatment violated the “standard of care.”

The problem is that there is no “standard.”

Some instances of negligence so obviously violate proper care that defendants will stipulate or admit to the violation. An example is when a surgeon operates on the wrong limb, or in one of my cases, on the wrong side of the face.  In a case like that, the lawsuit can move forward on the damages caused by the negligence and work toward winning fair compensation for the injured.

by Gary Brooks Mims

oliver-wendell-holmes-300x300When you think of the law, most of us tend to think in terms like “justice,” “equality,” or “fairness.”  Unfortunately, the law is not always fair, nor does everyone receive equal treatment, and often, it does not succeed in meting out “justice.” Virginia medical malpractice law offers at least two examples of this.

The first involves the statute of limitations. Recently, an 18-year old woman came in to the office for a consult. As an infant, she was injured by the negligence of her doctor in a surgery that left her without most of her intestine. She asked me about the statute of limitations.

On May 3, 2016 a leading peer reviewed medical journal “The BMJ” (formerly known as British Medical Journal) included a study authored by Professor Martin A. Makary (professor of surgery at the Johns Hopkins University School of Medicine) that shows just how common death occurs in America due to medical error—malpractice. This study was a front page story in May 3, 2016 Washington Post (

The study may shock some. Why? Because there is a systematic wall of silence that prevents the public from learning about negligent medical practices. When death occurs at a hospital as a result of negligence, information about the cause of death is usually kept secret from the patient’s family and the public. Frequently family members come to us because they want to know why a loved one died while in the hospital—not because they want to sue someone. They come to us because the hospital will not provide a cause of death—beyond something as vague as “cardiac arrest”. The term “cardiac arrest” might be accurate, but it says nothing about why the heart stopped.

If a plane or train crashes, the National Transportation Safety Board (NTSB) will investigate to determine the cause. This occurs regardless of the number of people injured. Why? To make air and rail travel safe—regardless of who might ultimately be held financially accountable. Frequently, hospitals will also investigate the cause of death but, unlike the NTSB, its investigation is kept secret. The hospital will not share with the family or anyone else the results of the hospital’s investigation.

In Virginia, state law imposes a “cap” on damages that can be recovered in medical malpractice cases. In 2016, the cap is $2.20 million, for acts of malpractice that occurred between July 1, 2015 and June 30, 2016 (Va. Code §8.01-581.15). This cap is imposed regardless of the circumstances of how the injury occurred, the severity or duration of the injury, or of the need for continuing treatments such as lifelong care. What does this mean to you as you or your family or friends try to pursue justice for medical negligence?

Consider a sad but straightforward medical malpractice case: A five-year old boy hospitalized for a routine procedure is given the wrong medication. He suffers an irrevocable brain injury that leaves him permanently disabled, requiring full-time care for the rest of his life (about 60 years). At trial, a life care planner testifies that the child’s care will be $300,000 per year or about $18 million over his lifetime. The negligence is undisputed. The jury returns a verdict in the amount of $25 million (lifetime care plus $7 million for diminished quality of life) to be placed in trust for the child’s benefit. The judge thanks the jurors for their service to the community and they leave, believing that they have justly compensated this young boy. However, unbeknownst to the jury, the judge will reduce the verdict by $23 million down to the cap of $2 million (the cap at the time of the malpractice), leaving the boy’s family with extraordinary financial pressures to try to care for their son during their lifetime. This would likely bankrupt most families.

This means two things to you when you consider pursuing a medical malpractice case. The cap is unfair but it is a reality. Second, the lawyer you choose must actively prepare the case for trial, not merely pursue a settlement. Why? Why incur the expense of experts, depositions, document review and other necessary steps in trial preparation? Because the defendant in Virginia has little to lose by going to court as his risk is clear and contained — the cap is the most the defendant can lose, regardless of any circumstances of the case. As a result, settlement offers from the the defendant’s insurance company are generally far less than what the case is worth and nearly always less than the cap.

In a confidential settlement, an anesthesiologist agreed to pay $1,690,000.00 to settle a lawsuit brought by her patient who suffered a torn esophagus due to the negligence of a surgical anesthesiologist.
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